Opinion: Queens prosecutors who lied must face consequences
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Prof. Ben Gershman is Professor of Law at the Elisabeth Haub School of Law, Pace University. Photo courtesy of Gershman
By Bennett Gershman
In a 29-page decision issued on March 8, 2021, Judge Joseph Zayas meticulously documented how two prosecutors, Charles Testagrossa, then chief of the Major Crimes Bureau, and Assistant District Attorney Brad Leventhal abdicated their constitutional and ethical duties and denied George Bell, Rohan Bolt and Gary Johnson a fair trial.
Not long after the decision was issued, Testagrossa resigned from his position as Deputy Assistant District Attorney in the Nassau County District Attorney’s Office and Leventhal resigned from teaching a class at St. John’s Law School, citing “distraction” from the case.
If Queens DA Melinda Katz is to be true to her campaign pledges to reform her Office, she must heed the calls for the firing of Leventhal, who now serves as the chief of the Queens DA Homicide Bureau, and confront the fact that the prosecutorial misconduct in this case was not inadvertent, as she claimed, but was, instead, the product of a perverted dedication to convictions, not doing justice.
The crime that underlies Justice Zayas’ decision has been reported extensively in the Eagle.
In the pre-dawn hours shortly before Christmas, 1996, several men in a van attempted to rob a check-cashing establishment and shot and killed Charles Davis, an off-duty police officer, and Ira Epstein, owner of the store. The killings inflamed the community, and Mayor Rudolph Giuliani and Police Commissioner Howard Safir demanded quick arrests. Soon after the killings, the police received a tip from a small-time drug dealer, John Mark Bigweh, who over several days of police questioning gave evolving and contradictory accounts about the killings, first claiming that he knew nothing about it and then saying he was the lookout. He identified George Bell, Rohan Bolt, and Gary Johnson as the perpetrators, Bell being the shooter.
But Bigweh’s story was filled with inconsistencies and there was no physical evidence, fingerprints, or surveillance videos to back up his story. An eyewitness standing some 200 feet away gave a vague account. Bell and Johnson confessed, but immediately recanted their confessions, claiming they were coerced. Bell was charged with capital murder under New York state’s then-recently enacted death penalty statute.
After the three were arrested, on May 9, 1997, an armored car delivering a payroll was ambushed in Queens and an off-duty police officer and a retired detective guarding the truck were shot multiple times, almost fatally. Three men associated with a robbery crew named “Speedstick” were arrested for the shootings. The Daily News reported that the three, plus another man, were suspects in the December check-cashing store murders.
On the basis of the Daily News report, lawyers for Bell, Bolt and Johnson repeatedly demanded the production of information developed by the police linking that May 9 armored car robbery to the murders of Davis and Epstein. Repeatedly, and under oath, the Queens DA denied that there was any connection.
Judge Zayas’ decision details that those denials were a lie. In fact, evidence tying the crimes together was documented in an official police report memorializing the interview of a member of the Speedstick gang. Information from that interview was known to Queens DA prosecutors working on at least three other prosecutions being handled by Testagrossa’s Major Crimes Unit. One of the prosecutions was against a leader of the Speedstick gang, Aaron Boone, who was charged with the assassination of Jamal Clark, another member of the gang who had admitted to participating in the failed robbery that resulted in the murders of Davis and Epstein.
But there is more than logic and common sense proving that knowledge of the connection between Speedstick and the Davis/Epstein murders was known to prosecutors: more than 24 years after the fact, DA Katz’s Conviction Integrity Unit disclosed the existence of handwritten notes prepared by Testagrossa of a conversation with the lead detective on the Clark murder in which Testagrossa was told of the link between Clark, Speedstick and Officer Davis’ murder.
Every prosecutor knows that under Brady v. Maryland, the landmark case requiring a prosecutor to disclose favorable proof to the defense, the Speedstick evidence should have been produced. Indeed, credible evidence that another person committed the crime — called “third party guilt” evidence — is always admissible to prove a defendant’s innocence, and under Brady a prosecutor always must disclose it.
More than anyone in the DA’s office, Testagrossa was acutely aware of the connection between the armored car heist and the check-cashing ambush. And Testagrossa and Leventhal both knew that the defense lawyers were pressing for evidence that an armed robbery gang had committed the crime and that fingerprints from the scene had been tested against fingerprints of Speedstick gang members.
Notwithstanding this evidence, the defense lawyers’ arguments and their ethical obligations, Testagrossa and Leventhal flatly denied there was any connection between the two robberies. They filed an affirmation stating that “there is no evidence pointing to any uncharged person as being involved in the crimes charged.”
They mocked the defense lawyers for wasting the court’s time making frivolous motions and argued that the detective who had told Testagrossa that the robberies in fact were linked should not be permitted to be called as a defense witness. And, needless to say, Judge Arthur Cooperman obliged, unaware of the prosecutors’ dishonest conduct. Taking a cue from the prosecutors, the judge even chastised the defense lawyers for their “fishing expedition in the Sahara Desert.”
As Judge Zayas correctly found, by suppressing Speedstick’s connection to the Epstein/Davis murders, “The prosecution completely abdicated its truth-seeking role, perhaps because it feared that evidence being sought by the defense would substantially undermine the likelihood of obtaining a conviction.”
But there was more. A lot more. It turns out that Leventhal suppressed basic facts about Bigweh’s troubled history and the Queens DA’s relationship with Bigweh, information that defense lawyers could have used to shred Bigweh’s credibility on the stand.
They suppressed the fact that Bigweh had attempted suicide, writing a suicide note that is unaccounted for. They suppressed the fact that after this failed suicide attempt, his second, the Queens DA entered into a signed cooperation agreement with Bigweh dated January 30, 1997. They suppressed the fact that on March 19, 1999 — just when jury selection in Bell’s trial was getting underway — Testagrossa, nullified the cooperation agreement, citing Bigweh’s refusal to continue his cooperation against Bell, explaining why Bigweh did not testify at Bell’s trial.
But Bigweh did testify at Bolt’s and Johnson’s trial. And the newly discovered evidence from the CIU establishes that the prosecution elicited perjury from Bigweh at both trials. For it turns out that after the Queens DA repudiated Bigweh’s cooperation agreement, Bigweh entered into a second cooperation agreement, dated October 28, 1999 and signed by Leventhal.
At Bolt’s trial, Bigweh testified in response to questioning by Leventhal that “the first time [he was] offered any leniency for cooperating with the District Attorney’s Office in the prosecution of this case[]” was “October 28, 1999.” Bolt’s trial counsel then asked if Bigweh had “talked about leniency [from the District Attorney’s Office] prior to signing the [October 28, 1999] cooperation agreement,” to which Bigweh responded “No.”
Leventhal did not correct Bigweh’s lie. Substantially, the same perjured testimony was elicited by Leventhal at Johnson’s trial, a perjury that could not be uncovered because, again, Leventhal withheld this Brady material despite specific requests for its production.
More still. Bell’s defense was that he had been coerced into giving a false confession. In order to prove that the confession was false, defense lawyers sought to show that the details of the confession were inconsistent with the known facts of the crime.
One of the statements made by Bell in his confession was that the getaway vehicle used in the failed robbery was a “burgundy” van. Sitting in the Queens DA files and unproduced to the defense lawyers were eyewitness statements that the van used in the crime was blue or green. Also suppressed was the fact that the police recovered a stolen blue van within hours of the crime and that an eyewitness had identified the van as the getaway vehicle. And to boot, the Queens DA also suppressed police reports documenting the source of the incorrect information that made its way into Bell’s false confession.
In the face of all of this, Queens DA Katz took the position that the failure to turn over the documents tying Speedstick to the Davis/Epstein murders was “inadvertent” and the prosecutors acted in “good faith.”
She was noticeably silent, however, on the question of whether the suppression of Bigweh’s first cooperation agreement, the ADAs elicitation of perjury from Bigweh and the failure to disclose evidence establishing that the van used in the robbery was blue, not burgundy, was also the product of prosecutors acting in good faith.
Judge Zayas excoriated the assertion that prosecutors acted in good faith. As Judge Zayas observed: “There is no explanation [from the D.A.’s office] for why this information was not disclosed, let alone an explanation that would support the conclusion that the nondisclosure was fairly attributable to negligence, inadvertence, or anything else short of deliberate suppression.”
Judge Zayas was right, DA Katz was wrong.
The prosecutors’ misconduct in this case is truly “mindboggling.” It cannot be passed off as the product of “inadvertence” or a good faith “error.” That these prosecutors so aggressively, cavalierly, and dishonestly subverted the defendants’ right to a fair trial is shocking; that they would actually seek the death penalty against 19-year-old George Bell is cruel and inhuman.
In his remarks from the bench, Justice Zayas stated: “Wrongful convictions like these cause grave institutional damage to the criminal justice system and damage to the administration of justice generally, especially given the legitimate and understandable doubts that many communities in our state already have about the criminal justice system and its ability to deliver equal and fair justice to all.”
Part of the process necessary to restore public faith in the system, and especially in the communities that question its ability to treat people of color fairly, is to recognize that eliciting perjury and withholding exculpatory evidence in the pursuit of convictions is wrong. It will not be tolerated.
Bell, Bolt and Johnson lost 24 years of their lives. But other than an unceremonious resignation, what has Testagrossa lost? What has Leventhal lost?
If criminal justice reform means anything, it means that prosecutors who engage in prosecutorial misconduct that resulted in this tragedy have to pay a price. The message has to be clear: If you ignore your ethical obligation to do justice, you have no place in the criminal justice system and will be fired.
Prof. Ben Gershman is Professor of Law at the Elisabeth Haub School of Law, Pace University. A former prosecutor with the Manhattan District Attorney’s office for six years, he is one of the nation’s leading experts on prosecutorial misconduct and the author of “Prosecution Stories,” Twelve Tables Press, 2018.
